IMPORTANT 457/TSS and ENS/RSMS update: Occupation list and proposed transitional arrangements

Migration agents were privy to a peek at the January 2018 update by the Department of Home Affairs (DHA) on changes to the employer sponsored temporary and permanent visas in a December email. This includes the abolition of the Subclass 457 – Temporary Work (Skilled) visa, the implementation of the new Temporary Skill Shortage (TSS) visa, and significant changes to the permanent Subclass 186 – Employer Nomination Scheme and 187 – Regional Sponsored Migration Scheme visas.

The DHA have now released an official and important update in their January edition of their E-newsletter. This provides a glimpse into key initiatives and transitional arrangements many current 457 visa holders and prospective visa applicants would be eager to know about, and includes recommendations for cut-off dates for certain applications.

While many aspects of the newsletter have been previously covered, including: same-sex marriage recognition, the Singapore-Australia Free Trade Agreement, and visa holders updating their passport details with the DHA by email, newsworthy items are detailed below.

Occupation Lists

New Occupation Lists will come into force "on or around" 17 January 2018. While the amendments are as yet unknown, if changes are according to the Department of Jobs and Small Business's (DJSB) recommendations in their Traffic Light Bulletin published in November 2017 the follow is possible:

To be removed from the Short-Term Skilled Occupation List (STSOL)

141999 Accommodation and Hospitality Managers nec

142114 Hair or Beauty Salon Manager

223112 Recruitment Consultant

312112 Building Associate

To be added to the STSOL

242112 University Tutor

272314 Psychotherapist

612112 Property Manager

612114 Real Estate Agent

612115 Real Estate Representative

The DJSB concluded that the Medium and Long-Term Strategic Skills List (MLTSSL) should remain unchanged.

Perhaps learning from the outcry in April 2017, the DHA have stated that any changes will not affect application already lodged, including for 457 visas. This will avoid the unjust situation of having to refuse nominations and visa applications because the occupation was removed after lodging. They have also said that any changes will be revealed prior to the new list being implemented, again to avoid any undue shocks to sponsors and applicants.

New occupation lists for the new TSS visa and for 186 and 187 visas will be published in March 2018. This will be when, apparently, only applicants nominated for an occupation on the MLTSSL will be eligible to apply for a 186 or 187 visa unless the employer is in a regional area or transitional arrangements apply. More on that below.

457 applications and current processing arrangements

The DHA will take a “no mercy” approach to 457 visa (and related) applications that are incomplete. Applications will be refused if, within two calendar days, applications do not meet requirements except in cases of:

  • Genuineness concerns – Probably because this criterion is prone to subjectivity,
  • Health and character documents are pending – Probably due to processing times being out of an applicant’s control,
  • A related precedent application must be finalised – Eg. a nomination or standard business sponsorship application, or
  • A reasonable and satisfactory explanation has been provided by an applicant or agent who does not have a history of lodging incomplete applications.

New labour agreements will be issued for ratification to existing labour agreement holders to ensure compliance with the new TSS visa.

Also, sponsors will soon be able to notify the DHA of any events required according to their mandatory sponsor obligations through ImmiAccount. This is a good initiative as there will be, presumably, a history of a sponsor’s activities in a central and readily accessible location.

457 to TSS transitional arrangements

Of great importance, the framework of transitioning from 457 visas to TSS visas are suggested, including:

  • Standard business sponsors continuing to be able to nominate for TSS visas, meaning they will not have to apply unless their current standard business sponsorship expires,
  • Any 457 nomination and visa lodged prior to the visa being abolished will be subject to the legislative requirements of that subclass, and not subject to new TSS visa regulations,
  • Any 457 nomination lodged without a corresponding 457 visa prior to the subclass being abolished will be effectively ‘redundant’. The DHA have advised that any 457 nomination and corresponding visa application should be lodged no later than the end of February or otherwise postpone these applications until the new TSS visa is introduced,
  • Any 457 visa holder after the TSS visa has been introduced who wish to change sponsors but not needing to extend their visa duration (by lodging a TSS visa), does not need to apply for a new TSS visa, therefore, only an approved nomination is required,
  • Any 457 visa holder after the TSS visa has been introduced who wish to change occupation will need to lodge a corresponding TSS visa with any new nomination,
  • Subsequent TSS visa applicants to a 457 visa holder can lodge a subsequent TSS visa without the need for the primary 457 visa holder needing to lodge a new TSS visa as well.

Auto-approvals for accredited business sponsors

Auto-approvals are set to arrive for certain applications. Auto-approvals already exist for a very small number of visas, for example, some resident return visa applications. For the new TSS visa, auto-approvals are expected for low-risk nominations for accredited business sponsors, and possibly for renewing accredited or unaccredited standard business sponsorships, most likely due to the removal of the training benchmarks.

186/187 transitional arrangements

Finally, for current 457 visa holders (and potentially 457 visa applicants), the DHA have released proposed transitional arrangements for those who held a 457 visa on 18 April 2017, or had applied on or before 18 April 2017 and who were subsequently granted this visa. Both 457 visa holders and 457 visa applicants at that time must continue to hold either a 457 visa, or a TSS visa, or a related bridging visa. These visa holders will be subject to new requirements except that certain transitional provisions will be available, including:

  • Not requiring the nominated occupation to be on the MLTSSL,
  • The primary applicant must be less than 50 years old with existing age exemptions available, and
  • The primary applicant must have been employed as the holder of a 457/TSS visa for a minimum of at least two years in the nominated occupation.

What this seems to proclaim is that the Temporary Residence Transition stream for a 186 or 187 visa will remain available for this cohort except perhaps certain nomination requirements, such as the pricy Skilling Australia Fund Levy applying to their nominations.

While nothing can be guaranteed, it is a firm step by the DHA in communicating regulations likely to be passed into law soon.